One Law for the Lion and Ox
James Goulding’s descriptions of Xeer—Somalia’s polycentric ancestral law—leads me to several highly general conclusions.
1. The jurisdiction of law should be local, and law itself should be contingent to local circumstances.
2. Law should be administered or enforced by individuals who possess the consensual respect of the local community, not by individuals who have politicked the best or promised Obamaphones to the masses.
3. Law can be guided by precedent but should not be permanently codified for all future cases.
4. Law-dispensing or law-enforcing bodies should be impermanent rather than standing. They come together when necessary but otherwise their members are involved in other pursuits.
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“Why is one law given to the lion and the patient ox?” asked William Blake. “One law for the lion and ox is oppression.” Though partially decontextualized, Blake’s aphorism strikes at the heart of federalism and statist policy. Law that is proper, effective, and just in one case or locale may be none of those things in another case or locale. A centralized regime that enforces the same law in all cases and locales is an oppressive regime. (To provide a practical example: a centralized regime that passes an open-borders law from a capitol that lies a thousand miles from the border is oppressive. One law for Fairfax, Virgina and Phoenix, Arizona.)
If we grant this idea validity, we can conclude that, while geographically diminutive or ethnically homogenous states might function well with centralized legal power, the vast majority of centralized states are by definition oppressive because their entire reasons-for-being are to legislate one law for all cases and locales—for the lion and the ox. The great value of polycentric, P2P law is that it resists centralization and thus resists centralized power’s oppressive tendency to dictate law applicable in one case or locale for all cases and locales. Polycentric law places primacy on ever more local concerns and circumstances. It places power into the hands of individuals who are locally known and trusted rather than individuals democratically elected by an amorphous, massive majority. It also obviates the need to balance competing local concerns for the sake of an artificial, centralized assembly.
And yet . . . when you give up that centralized assembly, you resist that tendency toward statist oppression, but you also give up other things. The history of the West, at its best, is the history of productive alliances between the state and private, local actors. Without the centralized state, would we have interstate highways, space programs, nuclear energy, national parks? I don’t know. Without the centralized state, would we have safe architecture, safe air travel, safe roads? Again, I don’t know. I loathe the central state, so my natural response is to say that whatever accomplishments the state can claim would have been accomplished equally well or more efficiently and triumphantly by private actors left to their own, local devices (c.f., the development of standards and practices in various open-source communities). Even so, we cannot deny that centralized power has, in the past, aided technological and economic advancement. The question is, can these advancements continue without a central state? Can Xeer and technological civilization co-exist?
To put the question another way, are the general ideals listed above only possible in isolated communities not connected to the world via mass media and global trade? In my opinion, yes: those legal values are only applicable in special environments segregated from the complex, high-tech world of interstate, international nodes and networks. Xeer and civilization don’t mix well. You have to sacrifice one to maintain the other. And unlike Mr. Goulding, I am unwilling to sacrifice high-tech civilization for a more stable and virtuous legal system.
But maybe I’m erecting a false dichotomy. Perhaps the general virtues of polycentric law are compatible with high-tech civilization. Figuring out how they are compatible is a project well worth pursuing.
habitableworlds.wordpress.com 
The first thought that popped into my head on reading this is that I moved 500 miles away from where I was raised, and that I would never, ever want my crimes and non-conformity tried by either the people I was raised around, nor the community that I’ve only just started to integrate into. The point of a centralized law system is that since it cannot apply equally to all, it must necessarily keep a small footprint. If we limit our laws to the basics – don’t kill, don’t steal, etc – it doesn’t really matter where it emanates from. On the other hand, the extra-legal laws (no racist, sexist, homophobic thoughts) are not coming from a central authority. They are rising up organically from the hinterlands and are far worse than being tried by a Jury of our Kanye-fan peers for stealing Monsanto products.
June 22, 2013 at 12:15 pm
I’m really missing what’s so attractive about this line of thought. A predictable system of adjudication and the rule of law (as Hayek would define it) is a great feature, amenity, and achievement of civilization. Perhaps it’s because ‘law’ is too broad a concept (incorporating things like property and contract claims, as well as criminal justice and administrative regulation) that I’m missing the appeal.
And as Hayek also explained (His, “The Constitution of Liberty” is a key resource here) – predictability is the essence of a fair and equitable system of law, and the foreseeability of the legal consequences of one’s actions (necessarily impersonal) is more important than the content of the law itself. Ideally, and perhaps one day, the law can be administered by perfectly consistent computers. But as uncertainty of result increases – what one has is the opposite of “law” and the replacement of it with the whimsical and capricious grace of personal authority. A commander, not a judge.
A great deal of the legal system exists as a facilitation of commerce – where the parties themselves define the rules and the system exists as a arbitrator to resolve ambiguities and compel the performance of obligations. That need creates lots of problems for “P2P law” or modern Xeer.
Let’s briefly consider your four conclusions:
Well, our system is one of overlapping areas of jurisdiction (homeowner’s association, city, county, state, federal, international), one of which is the smallest and most local and even quasi-private, with a hierarchy of supremacy and priority to resolve conflict of laws. Perhaps your beef is with the distribution of authorities – a kind of principle of subsidiarity? But how can two people contract from different jurisdictions with assurance that they’ll be treated predictably and fairly? I also don’t understand ‘contingent’. The law says my property line with my neighbor is located at X. What local situations should permit a judge to move that line? What local circumstance is it contingent upon?
How to measure ‘consensual respect” And who has “consensual respect” if not someone who tends to rule in ways that make awards to the class of individuals who constitute the majority of the population / the masses? Certain rural communities in the US during the Great Depression had to declare martial law because the judges properly ruled for foreclosure against defaulted, indebted farmers, and the farmers were stringing them up. Other judges fudged the law or politicians changed them thinking they were helping the farmers, but causing a cascading collapse of the local banking system and destroying the savings of creditors. Law is about dispute, and resolution of disputes involve interests held by differing subsets of the overall community. You end up with a paradox – respect for the system is earned by fair (predictable) performance despite insulation from the need for respect (or popularity).
Ok, so how do I reference the rules to discover what they are? (you don’t have ‘law’ if you can’t discover at least the distribution function of how your case will resolve in the event of a dispute). I can research case law, but if the precedents are extremely consistent, why not make a “Restatement” which capture all the widely-agreed upon principles of jurisprudence, and why not allow the legislative authority to adopt (with right to modify in the future) a codified version to add certainty and predictability to the interaction-space under its jurisdiction?
If the results wouldn’t change why would it matter? Or why do you expect the results would be an improvement? We live in an area of expertise, division of labor, and intricate specialization. The modern practice of law is a complex and cognitively demanding profession, the building of human capital in which requires a large investment in time and resources and competitive recruitment of talent, for all of which they are large costs of alternative opportunities. It doesn’t make sense for society to not maximize the efficiency of the time-utilization of that capital. No business would idle an expensive piece of machinery for most of the year. No one says that a, “health-care dispensing body should be impermanent”. So why law?
Ok, the point is, modern law is the way it is for many good reasons essential to the conduct of modern civilization. Jurisdictional distribution is important. But what’s more critical is the distribution of authority (sovereignty – which necessarily also means influence over opinions), and the scope and content of the law. P2P / polycentric law doesn’t seem to me to solve anything we don’t already have tools to handle.
June 22, 2013 at 12:20 pm
Your take-down of my four points is refreshing. I’m afraid I wrote as though an improved legal system would frame law as a thing to be created de novo at every moment of every day. But clearly the ancestral laws of Xeer are understood implicitly. Whatever guides the judges surely does not vary widely from case to case or locale to locale. The guiding differences that do exist, however, are, I would suspect, responses to local contingencies, and I was trying to highlight Xeer’s apparent sensitivity to these contingencies, its ability to take them into consideration, unlike, e.g., a Supreme Court decision.
June 22, 2013 at 10:21 pm
Centralized law, and the power to enforce it, must exist at least sufficiently to keep separate subsidiarities from tearing each other apart. It can probably do more a bit more as Sharlach suggests, but the trouble is that it is (apparently) impossible in the long run to keep centralized law from developing an increasingly large footprint… in which inevitably one subsidiarity manages to seize control and rip the others apart.
June 22, 2013 at 3:26 pm
Scharlach:
Interesting thoughts.
I don’t think that Xeer’s peculiarities apply to P2P legal systems in general. Codification and permanent judicial institutions seem essential to developed economies. I wouldn’t draw any conclusions from this one case study, except:
1. Xeer is empirically far superior to more hierarchical legal systems that have been tried in Somalia.
2. Xeer works, despite the absence of democratic politics or even a minimal distinction between rulers and ruled.
I wouldn’t hold up NASA in defence of unipolar law. Quite the contrary; it has achieved little with an exorbitant budget.
More seriously, the West doesn’t have highly centralised polities; they are all hideously undesirable. The world of global trade has been facilitated by polities that are less P2P than Somalia, but not categorically different. Almost if not all the bad institutions about which Reactionaries complain, including the Fed, the mass media megaphones, democratic politics, tax-funded NGOs and bureaucratic legislation, are unipolar phenomena. I have not seen evidence that these are essential to high-tech civilisation.
June 22, 2013 at 8:46 pm
Yes, I may have read too much into your selection of Xeer. I see now that you’ve used it as an example in order to demonstrate simply that P2P works, not to suggest that this particular P2P system is the end-all-be-all of such systems as they might work in the West.
You write that the high-tech civilization and global trade “have been facilitated by polities that are less P2P than Somalia, but not categorically different.” What are some examples you’re thinking of here? How are you defining polity?
I think the next step for me personally is to properly differentiate unipolar from polycentric polities and systems. I’m thinking purely in terms of governance, but apparently you can see this system at work in other spheres.
June 22, 2013 at 9:42 pm
I use the word “polity” because unlike “state” it doesn’t have unipolar connotations. A decent reduction is: “political and legal configuration of a somewhat distinct population”.
The examples I’m thinking of include all Western nations. “Checks and balances” implies a certain degree of P2P. Medieval England seems to have been relatively more P2P—see this paper on jurisdiction as property. Polycentricity is an axis, not either-or.
Extremely unipolar polities include North Korea, Soviet Russia and Nazi Germany. Putin’s Russia is fairly unipolar.
June 22, 2013 at 9:55 pm
One doesn’t have to go nearly as far afield as Somalia or medieval iceland to find good examples of peer-to-peer law. At an abstract level on can distinguish three kinds of relationships within or between polities:
(1) Master/servant (or in modern parlance, employer/employee) relationships, such as the federal civil service hierarchy, or a military command-and-control hierarchy. This is and was the dominant form of relationship within a military dictatorship such as the Roman Empire, and thus in the old Roman Law and in the university studies of “political science” (Bodin, Hobbes, etc.) that sprang from the study of that law. (Universities have their very origin in the recovery and study of the codification of Roman imperial law compiled under Justinian). Essentially in this structure command and law are synonymous: the emperor’s will is law, to paraphrase Justinian’s Code.
(2) subsidiarity: e.g. the relationship between counties and states, or between the states and the federal government. Often these combine supremacy clauses (when in conflict the law of the encompassing jurisdiction trumps that of its subsidiaries) with enumerated powers (the subject matters of the encompassing power is limited relative to that of the subsidiary).
(3) peer-to-peer: these can include agreements made between non-subsidiarity polities, or common efforts at standardization (e.g. the Uniform Commercial Code, which is not federal or national law, but a standard set of laws separately enacted by 50 separate jurisdictions, the states, as peers), or simply maintaining distinct sets of laws adapted to local conditions along with agreements for resolving conflicts of laws. On a larger scale wars and treaties between nations are peer-to-peer relationships.
In medieval England, the subject matter of the encompassing jurisdiction was very small, the Crown essentially having jurisdiction only regarding procedural laws for interactions between subsidiarity jurisdictions (which like the encompassing Crown were held as property by individuals or corporations), as well as some war-making powers. Substantive law was almost entirely in the hands of more local jurisdictions, including the specialized merchant courts as peers enforced an international standard of business law, the _lex mercatoria_.
By contrast in the modern U.S., the substantive legal jurisdiction of the encompassing power has become vast in scope. Nevertheless one can still find plenty of examples of peer-to-peer law, as with the aforementioned U.C.C., and of very fine-grained subsidiarity, down to the jail cells in the back offices of many shopping malls, “stand your ground” laws, and citizen’s arrest.
June 23, 2013 at 12:29 am
P.S. on the crucial distinction between procedural and substantive law:
http://unenumerated.blogspot.com/2010/02/basics-procedural-vs-substantive-law.html
June 23, 2013 at 12:38 am
Handle,
Courts are not permanent institutions under Xeer, but the judges are specialists. Xeer is a big improvement over the disastrous central state that existed between the end of the colonial era and 1991, so this case study (within reasonable limits) is not a matter of speculation.
The main advantage of polycentricity is not that new substantive law would be remarkable, but that it takes certain tools away from people and locks them in a shed where they belong.
June 22, 2013 at 9:06 pm
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You are lost on your thoughts.
Blake is writing prophetic satire and rigging on Isaiah 11:7.
Blake had none of your thoughts and concerns in mind. Don’t swim in this end of the pool until you understand the depths.
July 24, 2016 at 9:56 pm